Deeplinks Blog posts about No Downtime for Free Speech

Last week, two leading Constitutional scholars offered detailed analyses of the Internet blacklist bills now pending in Congress, the Stop Online Piracy Act (SOPA) and Protect-IP, or PIPA. Both scholars concluded that the proposed law could not pass muster under the U.S. Constitution. So you’d think that the new version of SOPA circulated this week would have resolved those concerns.

You’d think wrong.While the revised SOPA briefly mentions the First Amendment, the substantive text makes clear that's just lip service.Here’s a selection of fundamental flaws that remain in both SOPA and PIPA:

Representative Lamar Smith, the principal sponsor of the Stop Online Piracy Act (SOPA), a dangerous and unconstitutional Internet blacklist bill now working its way through the House of Representatives, has released a “manager’s amendment” that reworks some of the bill’s worst provisions.While the new version jettisons some of the most harmful language, it doesn’t go nearly far enough.

The best thing about the new version is it no longer allows a private actor to effectively cut off payment processing for websites with a simple notice.The bill also endeavors to narrow the range of targets to non-U.S. sites.And, the authors have had the good sense to eliminate language that would have put sites under threat if even a single page was arguably linked to infringement.

At EFF, we like to give credit where it is due. Over the past few years, we’ve repeatedlycalled out the Burning Man Organization (BMO) for using online ticket terms to require participants to assign to BMO, in advance, the copyrights to any pictures they took on the playa. The assignment was designed to allow BMO to send takedown notices under the Digital Millennium Copyright Act (DMCA) if it discovers photos online that it finds objectionable. We also criticized how the terms limited participants’ ability to donate their works to the public domain or to license their works through Creative Commons, and restricted ticket holders' ability to make fair uses of BMO trademarks, such as the (trademarked) term "Burning Man," on any website.

This week's news that the feds seized 82 websites based on allegations of copyright infringement demonstrated that government website seizures can silence innocent speech. But let's take a broader view for a moment. The domain seizure debacle, the COICA Internet censorship bill, ACTA, and many other short-sighted efforts to eliminate copyright infringement all depend on (a) the traditional entertainment industry's yowling wail that "piracy" on the the Internet is injuring the livelihoods of artists and (b) the US government's chronically uncritical acceptance of those complaints.

Over the past few days, the U.S. Justice Department, the Department of Homeland Security and nine U.S. Attorneys’ Offices seized 82 domain names of websites they claim were engaged in the sale and distribution of counterfeit goods and illegal copyrighted works.